State of N.H. v. Prevost

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 95-330

THE STATE OF NEW HAMPSHIRE

v.

DAVID PREVOST

March 12, 1997

Jeffrey R. Howard, attorney general (Jeffrey S. Cahill,
assistant attorney general, on the brief and orally), for the State.

Gary Apfel, assistant appellate defender, of Orford, by brief and
orally, for the defendant.

THAYER, J. The defendant, David Prevost, appeals a jury verdict finding him
guilty of being a felon in possession of a firearm, see RSA 159:3 (1994),
and receiving stolen property, see RSA 637:7 (1996). On appeal, the
defendant argues that the Superior Court (McGuire, J.) erred by denying
the defendant's motions: (1) to suppress evidence found in the vehicle in which
he was a passenger; (2) to suppress statements made during a custodial
interview; and (3) to dismiss the charge of receiving stolen property. We
affirm.

On February 5, 1994, probation/parole officers Christopher Callahan and
Elizabeth Boisvert went to a fast food restaurant in Hillsboro, where Callahan
encountered the defendant, a former parolee whom Callahan had supervised. As
both men exited the restaurant, a physical confrontation ensued, during which
the defendant struck Callahan twice.

The defendant then entered a Ford Escort, and the driver, Alicia Curtis,
drove out of the restaurant's parking lot. Officers Callahan and Boisvert
followed the Escort in an unmarked State vehicle. While heading east toward
Henniker in pursuit of the Escort, Callahan reported the incident to the
Hillsborough County Dispatch.

Responding to the dispatch report, Sergeant Douglas Paul of the Henniker
Police Department drove toward Route 9 to investigate. Sergeant Paul signaled
Curtis to pull the Escort to the side of the road.

After Curtis stopped the Escort, the defendant quickly exited the car and
approached Sergeant Paul with a jacket obscuring his hands. At first, the
defendant disregarded Sergeant Paul's command to get back in the car, but after
being ordered at least once to place his hands on the rear of the Escort, the
defendant complied.

After the defendant was placed in the cruiser, Sergeant Paul instructed
Curtis to get out of the Escort. Although Curtis initially consented to
Murdough's request to search her car, Curtis interrupted Murdough as he read her
a consent-to-search form and requested an attorney. Murdough replied that that
was fine and explained to her that the police were going to tow her vehicle and
apply for a search warrant.

Murdough returned to the cruiser, leaving Curtis with Officer Mitchell.
Officer Mitchell testified that Curtis made a couple of comments about wanting
to leave to which Mitchell responded that she could not leave because they were
going to have her car towed. Shortly thereafter, Curtis informed Mitchell that
she would sign a consent-to-search form. Officer Mitchell informed Officer
Murdough of Curtis' decision. Murdough read the consent form to Curtis and
addressed her concern about whether she was consenting to a search of her
vehicle only. Mitchell and Murdough searched the car and found a loaded
revolver, that was previously reported stolen, in a blue duffle bag and a
backpack containing marijuana. The defendant was placed under arrest and
subsequently informed of his Miranda rights.

Five days later, on February 10, 1994, the defendant's brother telephoned
Sergeant Paul asking whether he would accept a collect call from the jailed
defendant. Sergeant Paul agreed. Sergeant Paul testified that when the defendant
called a few minutes later, the defendant claimed that Curtis was not
responsible for the marijuana found in the car and essentially said, "I'll tell
you anything you want to know if you come up and see me."

Accepting the defendant's invitation, Sergeant Paul traveled to the jail,
bringing a tape recorder with him. Prior to recording, Sergeant Paul read the
defendant his Miranda rights. The defendant refused to sign the standard
Miranda waiver form but verbally waived his Miranda rights. The
defendant told Sergeant Paul, "I'll tell you some things but I won't tell you
others," and then proceeded to rehearse what he wanted to say before the taping
began. The defendant told Sergeant Paul that the blue duffle bag was his and
that he put it in the car, but he would not tell the sergeant what was in the
bag. Then Sergeant Paul began the taped interview. At the interview's conclusion
Sergeant Paul asked the defendant if he had been informed of his rights, to
which the defendant answered: "I know what my rights are. Correct."

The defendant was indicted on the charges of receiving stolen property and
being a felon in possession of a firearm. After a hearing, the superior court
denied both his motion to suppress the evidence obtained during the search of
the Escort, to wit, the gun, and his motion to suppress his statements to
Sergeant Paul concerning the blue bag. After a jury trial, the defendant was
convicted on both charges. This appeal followed.

I. Motion to Suppress Evidence

The defendant first contends that the warrantless search of Alicia Curtis'
automobile violated his rights under part I, article 19 of the New Hampshire
Constitution and the fourth and fourteenth amendments to the United States
Constitution because the police obtained her consent involuntarily. As the State
does not contest the defendant's standing to challenge the search, we decline to
address the issue or revisit our automatic standing doctrine. SeeState v. Paige, 136 N.H. 208, 210, 612 A.2d 1331, 1332 (1992). "We decide
this issue under the State Constitution, which provides at least as much
protection as its federal counterpart." State v. Seymour, 140 N.H. 736,
747, 673 A.2d 786, 794, cert.denied, 117 S. Ct. 146 (1996);
seeState v. Green, 133 N.H. 249, 260, 575 A.2d 1308, 1315 (1990).

The State bears the burden of proving by a preponderance of the evidence that
the defendant's consent was free, knowing, and voluntary. "In the case of a
consensual search, the State must show from all the surrounding circumstances
that the consent given was free, knowing, and voluntary." State v.
Osborne, 119 N.H. 427, 433, 402 A.2d 493, 498 (1979). "In reviewing a trial
court's finding of voluntary consent, we will not overturn the finding unless it
is without support in the record." State v. Pinder, 126 N.H. 220, 223,
489 A.2d 653, 655 (1985). The record in this case supports this factual finding.

The record supports the trial court's finding that "[t]he State has met its
burden of proving by a preponderance of the evidence that Alicia Curtis gave
[the police] voluntary and uncoerced consent to search her car." Officers
Callahan, Paul, and Mitchell testified that Curtis appeared neither scared,
upset, nor intimidated during the police stop. Although Curtis initially refused
to sign the consent form and requested an attorney, "prior refusal does not
necessarily invalidate a subsequent consent as involuntary." Green, 133
N.H. at 259, 575 A.2d at 1315. Officer Murdough testified that despite her
initial refusal, Curtis subsequently did not hesitate in signing the consent
form. The court concluded that Officer Murdough's statement about having the car
towed was explanatory rather than coercive in nature. The trial court reasonably
concluded that Curtis had her questions and reservations satisfactorily resolved
and as a result voluntarily signed the consent form.

II. Miranda Waiver

The defendant next argues that Sergeant Paul violated the scope of any
Miranda waiver the defendant provided during their meeting on February
10, 1994. Specifically, the defendant alleges that he attempted to limit the
discussion's topic to the marijuana found in Curtis' car and that Sergeant Paul
asked questions concerning a duffle bag which were unrelated to the marijuana
possession. Consequently, the defendant contends that the trial court's failure
to suppress his statements, other than those regarding the marijuana, violated
his State and federal constitutional rights against self-incrimination and right
to counsel. We disagree.

In New Hampshire, before evidence obtained during a custodial
interrogation can be used against a defendant, the State must establish "beyond
a reasonable doubt that the defendant was apprised of his constitutional rights
and that his subsequent waiver was voluntary, knowing, and intelligent."
State v. Girmay, 139 N.H. 292, 296, 652 A.2d 150, 153 (1994).
Because the Federal Constitution affords the defendant no greater protection in
this area, we will review the trial court's ruling using the State
constitutional standard. SeeState v. Rathbun, 132 N.H. 28, 30,
561 A.2d 505, 506 (1989); Colorado v. Connelly, 479 U.S. 157, 168 (1986).

"Recognizing that a trial court is in the best position to weigh the
credibility of the witnesses, we will not reverse its finding on the issue of
waiver unless the manifest weight of the evidence, when viewed in the light most
favorable to the State, is to the contrary." State v. Gagnon, 139 N.H.
175, 177, 651 A.2d 5, 7 (1994) (quotation omitted). The trial court expressly
found that the evidence showed beyond a reasonable doubt that the defendant
voluntarily, knowingly, and intelligently waived his Miranda rights. The
record supports the trial court's finding that the defendant initially agreed to
tell Sergeant Paul anything he wanted to know if Sergeant Paul went to see the
defendant at the house of corrections. Before the interview commenced, Sergeant
Paul read the defendant his Miranda rights. Although the defendant
refused to sign the waiver form, Sergeant Paul testified that the defendant
verbally indicated that he was willing to waive his rights and speak with
Sergeant Paul. Prior to the interview, the defendant rehearsed what he was going
to say during the taped interview: Alicia Curtis was innocent, the knapsack
containing the marijuana was in his possession and its contents were his
property, and the blue duffle bag was his and he placed it in the car. He also
stated that he would not say what was in the blue duffle bag. At the conclusion
of the interview, the defendant stated that he knew what his rights were.

We agree with the trial court that the State proved beyond a reasonable doubt
that the defendant's statements were made pursuant to a valid waiver. The trial
court found that the defendant stated that he would not communicate to Sergeant
Paul the contents of the blue bag. Sergeant Paul, however, asked one question
pertaining to the contents of the bag, to which the defendant replied merely
that the bag contained men's clothing. Although the admission of that response
may have arguably exceeded the scope of the defendant's waiver, prior to this
question the defendant admitted that he owned, packed, and placed the bag in
Curtis' vehicle. In addition, the defendant's answer did not acknowledge the
gun's presence. Therefore, even assuming that the admission of the statement was
error, we conclude beyond a reasonable doubt that it was harmless. SeeState v. Vandebogart, 139 N.H. 145, 157-59, 652 A.2d 671, 679-80 (1994).

III. Sufficiency of the Evidence

Lastly, the defendant argues that the trial court should have dismissed the
charge of receiving stolen property. The defendant argues that the evidence of
his knowledge that the gun was stolen was circumstantial and did not exclude all
rational conclusions except guilt. We disagree.

"In an appeal challenging the sufficiency of the evidence, the defendant
carries the burden of proving that no rational trier of fact, viewing the
evidence most favorably to the State, could have found guilt beyond a reasonable
doubt." State v. Bissonnette, 138 N.H. 82, 84, 635 A.2d 468, 469 (1993)
(quotation omitted). The jury "determine[s] the weight and credence to be given
the evidence at trial." Id. (quotation omitted). Additionally, the jury
is permitted to "draw reasonable inferences from facts proved and also
inferences from facts found as a result of other inferences." State v.
Stauff, 126 N.H. 186, 189, 489 A.2d 140, 142 (1985) (quotation omitted).
"Finally, the jury's inferences need not be premised on direct evidence, but may
be based entirely on circumstantial evidence, provided that such evidence
excludes all rational conclusions except guilt." Bissonnette, 138 N.H. at
84, 635 A.2d at 469.

To convict a defendant of receiving stolen property, the State has the burden
of proving that when the defendant received the property, "he either knew it had
been stolen, or believed that it probably had been stolen." State v.
Wong, 138 N.H. 56, 64, 635 A.2d 470, 475 (1993); see RSA 637:7. "We
have recognized that the State is rarely able to prove by direct evidence that a
defendant accused of receiving stolen property possessed the requisite guilty
knowledge." Wong, 138 N.H. at 64, 635 A.2d at 475 (quotation omitted).

In the present case, the State produced sufficient evidence for a jury to
reasonably infer that the defendant knew or believed that the gun had been
stolen. On November 11, 1993, a coin shop was robbed and the Connecticut State
Police subsequently arrested George Moore for the robbery. Among other things,
Moore took a Smith and Wesson .38, the same gun that the defendant had in his
possession the night of his arrest. Testimony established that the defendant
spent time in Connecticut with Moore after the defendant was released from
prison in September 1993 but before meeting Curtis around Thanksgiving 1993.
Curtis testified that the defendant and Moore were friends. In addition, the
defendant and Moore were in the same unit and division at the State prison. The
jury could have reasonably inferred that the defendant was in Connecticut when
his friend Moore robbed the store and took the Smith and Wesson. The jury could
have reasonably concluded, based on the circumstances, that the defendant
believed that the gun had probably been stolen when he received it. Taking all
the evidence into consideration, we believe that the jury could have excluded
all rational conclusions except guilt.